A Springfield judge has again given the green light to Gov. JB Pritzker to continue governing by executive order amid the COVID-19 pandemic, gutting a southern Illinois judge’s findings that Pritzker had overstepped the limits of his authority.
On Dec. 21, Sangamon County Circuit Judge Raylene Grischow overturned the decision of Clay County Judge Michael McHaney.
McHaney had entered judgment in favor of then-State Rep. Darren Bailey in the legal challenge to Pritzker’s use of emergency powers.
Sangamon County Judge Raylene Grischow
Bailey has been in court since May, seeking an order voiding Pritzker’s orders and blocking Pritzker from continuing to issue orders.
Bailey argued Pritzker had overstepped his legal authority, by continuing to issue executive orders more than 30 days after declaring a statewide disaster in March following the onset of the COVID-19 pandemic in Illinois. Bailey argued the Illinois Emergency Management Agency Act bars the governor from using emergency powers more than 30 days after declaring a disaster. After that, Bailey argued, the governor must secure permission from the Illinois General Assembly to continue governing by emergency executive orders.
Further, Bailey argued, lawmakers gave the power to close businesses to the Illinois Department of Public Health, and not the governor, and makes it subject to due process rules and procedures.
Initially, the lawsuit was filed in Clay County, Bailey’s home county.
In July, Judge McHaney sided with Bailey, ruling Pritzker had overstepped his legal authority.
Bailey’s lawsuit had been transferred to Grischow’s court by the Illinois Supreme Court, along with a number of other legal challenges leveling similar claims against Pritzker.
After the transfer, the Illinois Attorney General’s office, representing Pritzker, asked Grischow to reconsider McHaney’s ruling striking down Pritzker’s orders.
In the meantime, the Illinois Second District Appellate Court became the first state appeals court to weigh in on the questions at the heart of Bailey’s lawsuit. In a ruling on a lawsuit brought against the governor by a Geneva restaurant owner, the appellate court affirmed they believed Pritzker had the authority to continue to re-declare the same disaster every 30 days, and use emergency powers for as long as he believes is necessary.
Grischow cited the Second District decision, but also indicated she agreed with the Second District that Pritzker’s emergency powers have no effective time limit.
“The express purpose of the IEMAA is to ensure that the State will be prepared and capable of dealing with disasters, to preserve the lives of Illinois citizens and protect their property,” Grischow wrote. “Bailey’s theory is contrary to the legislative intent and strips the Governor of his emergency powers for the rest of the pandemic.”
Grischow noted the state legislature has amended the IEMA Act 11 times in the past four decades, “but has never limited the Governor to only one disaster declaration.”
Further, she noted the Illinois General Assembly convened earlier this year, and passed legislation that assumed the governor’s ability to continue to issue successive disaster declarations to continue exercising emergency powers for as long as he deemed necessary.
Further, Grischow ruled that the law delegating powers to the Department of Public Health is “subservient” to the IEMA Act.
“… An unconstitutional outcome would result if this Court were to uphold Judge McHaney’s Order and strip the Governor of his executive authority to protect the citizens of Illinois,” Grischow wrote.
Bailey has been represented by attorney Tom DeVore, of downstate Greenville.